Gaynor v. Horwitz, 33588
| Decision Date | 23 February 1971 |
| Docket Number | No. 33588,33588 |
| Citation | 464 S.W.2d 537 |
| Parties | Richard George GAYNOR, Plaintiff-Respondent, v. Sidney W. HORWITZ, Executor of the Estate of Henry B. Ramsay, Deceased, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Whalen, O'Connor & Byrne, William P. Byrne, Fred B. Whalen, St. Louis, for defendant-appellant.
James F. Koester, St. Louis, David G. Dempsey, Clayton, for plaintiff-respondent.
SMITH, Commissioner.
Defendant appeals from a judgment of $5000 awarded in accordance with a jury verdict in an automobile accident case. Defendant's attack is on the sufficiency of the evidence to support the giving of plaintiff's verdict directing instruction, (MAI 17.16) allowing recovery under the rear-end accident doctrine. Defendant also challenges the damage instruction on the basis it allowed the jury to assess future damages and the evidence failed to establish permanent damages.
Plaintiff's testimony established that he was driving in the underpass on the Third Street Highway in St. Louis in a northbound direction; at the place of the accident the road is straight. Plaintiff was allowed to give no other facts concerning the accident under the Dead Man Statute. The police officer who investigated the case testified that plaintiff's car after the accident was in the easternmost lane of the three northbound lanes and that Ramsay's car was three car lengths back on the concrete divider. The rear portion of plaintiff's car was damaged; the front portion of Ramsay's car was damaged.
Defendant's decedent (Ramsay) told the police officer that he was driving in the easternmost lane when he observed flashing red lights in the southbound lanes. He looked in that direction and then 'looked directly to his front and at this time observed Mr. Gaynor's auto, and he applied his brakes and skidded.' He was unable to avoid plaintiff's auto. He told the police officer the accident occurred in the lane he was driving in, the easternmost lane. Ramsay stated he was driving thirty to forty miles per hour. Plaintiff's photographic exhibits of his car show severe damage to the left rear of his car with substantial bending of the left rear fender of greatest severity at the rear where it joins the trunk and decreasing in severity to a point slightly forward of the rear tire. Beyond that point there was no apparent body damage to plaintiff's automobile.
We hold this evidence sufficient to allow submission under the rear-end doctrine.
To warrant submission under the rear-end doctrine it is necessary for plaintiff to establish that he had his vehicle in a portion of the highway where he should have had it or was entitled to have it in view of the course in which he was proceeding and that some person traveling behind him in the same direction overtook plaintiff's vehicle and struck it in the rear. If that is established a prima facie case of specific negligence against the overtaking driver is made. Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360; Witherspoon v. Guttierez, Mo., 327 S.W.2d 874. Vehicles traveling on a multilane one-way highway ordinarily have the right to use any of the lanes. Witherspoon v. Guttierez, supra, (1, 2). The collision occurred in the easternmost lane; that was where plaintiff's car was after the accident. When defendant looked to the front after directing his eyes to the flashing red lights to his side, he saw plaintiff's vehicle while looking directly ahead. The evidence was sufficient to warrant a conclusion that plaintiff was where he had a right to be, and was struck from the rear by Ramsay traveling behind plaintiff.
The plaintiff's exhibits show the major damage to plaintiff's car to be the rear end of it. It is certainly a...
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Forbis v. Associated Wholesale Grocers, Inc.
...described by other witnesses, as well as photographs of the front of defendant's tractor and the rear of the Forbis car (Gaynor v. Horwitz, 464 S.W.2d 537 (Mo.App.1971)), also support the submissibility of the rear-end doctrine. It was defendant's theory that during the process of making a ......
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McDowell v. Southwestern Bell Tel. Co.
...to prove permanent injury to recover for future damages. Future damages and permanent damages are not synonymous terms. Gaynor v. Horwitz, 464 S.W.2d 537 (Mo.App.1971).14 Plaintiff's reference to defendant as 'big insurance surance company' was held not to be prejudicial as a matter of law.......
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Chaussard v. Kansas City Southern R. Co., 26862
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Wichmann v. United Disposal, Inc.
...the Wichmann automobile was struck from the rear. Photographs of the damaged automobile substantiate this testimony. See Gaynor v. Horwitz,464 S.W.2d 537 (Mo.App.1971). Therefore, United Disposal's argument on this issue lacks any factual Alternatively, it is argued that the United Disposal......